<PAGE> 1
As filed with the Securities and Exchange Commission on
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PANTHER RESOURCES, LTD.
-----------------------
f/k/a GOLDEN PANTHER RESOURCES, LTD.
------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
NEVADA 95-3932052
------ ----------
(Jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
1111 WEST HASTINGS STREET, SUITE 211
------------------------------------
VANCOUVER, B.C. V6E 2J3
-----------------------
CANADA
------
PANTHER RESOURCES, LTD. 1998 STOCK INCENTIVE PLAN
-------------------------------------------------
(Full title of the plan)
---------------------------------
PENNY PERFECT
C/O PANTHER RESOURCES, LTD.
SUITE 211, 1111 WEST HASTINGS STREET
VANCOUVER, B.C. V6E 2J3
CANADA
(604) 689-5377
(Name, address including zip code and telephone number,
including area code, of agent for service)
---------------------------------
Copy to:
KENNETH A. KORB, ESQ.
PERKINS, SMITH & COHEN, LLP
1 BEACON STREET
BOSTON, MA 02108
(617) 854-4000
(Name and address of authorized representative
in the United States)
===============================================================================
Exhibit Index on Sequentially Numbered Page: 7
------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Titles of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share (1) Price (1) Fee
<S> <C> <C> <C> <C>
Common Shares (2) 2,391,500 Shares $0.30 $ 717,450 $211.65
200,000 Shares $0.50 $ 100,000 $ 29.50
$0.001 par value 200,000 Shares $0.75 $ 150,000 $ 44.25
Totals: 2,791,500 Shares $ 967,450 $285.40
========= =========== =======
</TABLE>
================================================================================
(1)
All such shares are either issuable upon exercise of outstanding
options with fixed exercise prices or are based upon the fair value of
the stock on the date of issue authorization. The aggregate offering
price and the fee for option stocks have been computed upon the basis
of the price at which the option may be exercised.
================================================================================
(2)
In addition, this Registration Statement also covers an indeterminate
amount of additional securities which may be issued under the
above-referenced Plan pursuant to the anti-dilution Provisions of such
Plan and, if interests in the above-referenced Plan are deemed to
constitute separate securities, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement shall also cover an
indeterminate amount of interests to be offered or sold pursuant to the
above-referenced Plan.
================================================================================
-2-
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. PLAN INFORMATION.
Omitted pursuant to the instructions and provisions of Form S-8.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted pursuant to the instructions and provisions of Form S-8.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "1933 Act") and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Panther Resources, Ltd. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
March 31, 1997.
(b) All other reports filed by the Registrant pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") since March 31, 1997.
All documents subsequently filed with the Commission by the
Registrant pursuant to the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered herein have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in an Incorporated Document shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby will be
passed upon for the Registrant by Perkins, Smith & Cohen, LLP. Neither it nor
any of its partners has any interest in the Plan.
-3-
<PAGE> 4
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Revised Statutes (the "NRS") provides for indemnification of
directors and officers in a variety of circumstances, which may include
liabilities under the 1933 Act. The Company's Bylaws provide for indemnification
of the Company's directors and officers (and those serving in such capacity with
a consolidated subsidiary other entity at the request of the Board of Directors
of the Company) in the circumstances, and to the extent, permitted by the NRS.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors officers and persons controlling the Company
pursuant to the foregoing provisions, or otherwise, the Company has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Identification Description Of Exhibit
---------------------- ----------------------
<S> <C> <C>
1. Exhibit 3(a) Registrant's annual report on Form 10-KSB
for the year ended March 31, 1997 and
incorporated herein by reference.
2. Exhibit 5.1 Opinion of Perkins, Smith & Cohen, LLP
[filed herewith]
3. Exhibit 8 Panther Resources, Ltd. 1998
Stock Incentive Plan [filed herewith]
4. Exhibit 23.1 Consent of Perkins, Smith & Cohen, LLP
(included in Exhibit 5.1)
5. Exhibit 23.2 Consent of Jones Jensen & Co., accountants
[filed herewith]
6. Exhibit 24 Power of Attorney (included as part of
the Signature page to the Registration
Statement)
7. Exhibit Index appearing on Page 7 of the Form S-8.
</TABLE>
-4-
<PAGE> 5
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the questions whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
-5-
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Panther Resources, Ltd., certifies that it has reasonable grounds to
believe that it meets all of the requirements of filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Vancouver, Province of
British Columbia, Canada on this 12th day of May, 1998.
By: /s/ Penny Perfect
---------------------------------------
Penny Perfect
President and Director
POWER OF ATTORNEY
We, the undersigned officers and directors of Panther Resources, Ltd.,
hereby severally constitute and appoint Penny Perfect and Gordon Muir, and each
of them singly, our true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable Panther Resources, Ltd. to comply
with the provisions of the Securities Act of 1933, as amended, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Gordon Muir Chairman of the Board May 12, 1998
- ---------------------------- and a Director
Gordon Muir
/s/ Penny Perfect President and Director May 12, 1998
- ----------------------------
Penny Perfect
/s/ Katharine Johnston Executive Vice President May 12, 1998
- ---------------------------- and Director
Katharine Johnston
/s/ Alexander Van Hoeken Director May 12, 1998
- ----------------------------
Alexander Van Hoeken
/s/ Robert Needham Director May 12, 1998
- ----------------------------
Robert Needham
/s/ F. Bryson Farrill Director May 12, 1998
- ----------------------------
F. Bryson Farrill, Director
-6-
<PAGE> 7
INDEX OF EXHIBITS
-----------------
Exhibit Identification Description Of Exhibit
---------------------- ----------------------
1. Exhibit 3(a) Registrant's annual report on Form 10-KSB
for the year ended March 31, 1997 and
incorporated herein by reference.
2. Exhibit 5.1 Opinion of Perkins, Smith & Cohen, LLP
[filed herewith]
3. Exhibit 8 Panther Resources, Ltd. 1998
Stock Incentive Plan [filed herewith]
4. Exhibit 23.1 Consent of Perkins, Smith & Cohen, LLP
(included in Exhibit 5.1)
5. Exhibit 23.2 Consent of Jones Jensen & Co., accountants
[filed herewith]
6. Exhibit 24 Power of Attorney (included as part of
the Signature page to the Registration
Statement)
-7-
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD:PERKINS, SMITH & COHEN, LLP]
May 1, 1998
Panther Resources Ltd.
211-1111 West Hastings Street
Vancouver, B.C. V6E 2J3
Canada
Dear Ladies and Gentlemen:
In connection with the proposed issuance and sale by Panther Resources,
Ltd., a Nevada corporation (the "Corporation"), pursuant to the Panther
Resources, Ltd. 1998 Stock Incentive Plan (the "Plan") of up to 3,000,000
additional shares of its authorized but unissued common stock, par value $0.001
per share (the "Stock"), we have examined, among other things, the following
documents with respect to the Corporation: (i) the Registration Statement on
Form S-8, including the prospectus, which is to be filed under the Securities
Act of 1933 (the "Registration Statement"), (ii) the proposed vote of the Board
of Directors adopting the Plan and authorizing the issuance and sale of the
Stock pursuant to the Plan, (iii) the Articles of Organization, including
amendments thereto, and the Bylaws of the Corporation, each as certified as true
and complete by the Secretary of the Corporation, and (iv) the Plan.
We are of the opinion that when the Board of Directors of the
Corporation shall have duly authorized the issuance and sale of the Stock
pursuant to the Plan, and the Stock shall have been received by the grantees in
accordance with the Plan, and the Corporation shall have received the requisite
consideration, the Stock will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement as presently to be filed or thereafter amended, and to
the use of our name under the caption "Legal Opinions" in any prospectus
included in the Registration Statement. In giving this consent we do not thereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
Perkins, Smith & Cohen, LLP
by: /s/ Kenneth A. Korb
------------------------------
Kenneth A. Korb, a partner
<PAGE> 1
EXHIBIT 8
PANTHER RESOURCES, LTD.
1998 STOCK INCENTIVE PLAN
1. PURPOSE. The purpose of the 1998 Stock Incentive Plan (the "Plan") is to
advance the interests of Panther Resources, Ltd., a Nevada corporation ( the
"Company"), and its shareholders by awarding equity based, long-term incentives
which will enable the Company to attract and retain key employees, officers, and
directors, who are and will be largely responsible for the future growth and
success of the Company and to compensate others who provide personal services of
substantial benefit or value to the Company. It is intended that this purpose
will be effected through the granting of Options and Restricted Stock (as
defined herein) in accordance with the terms of the Plan.
2. DEFINITIONS. In addition to other capitalized terms which are defined in
the Plan, the following terms shall have the following definitions:
2.1 "Board" - the Board of Directors of the Company.
2.2 "Change of Control"- (a) an acquisition of the Company by means of a merger
or consolidation of the Company with or into another corporation or a purchase
of substantially all of the Company's assets, following which a majority of the
Board of Directors of the successor or acquiring corporation is not comprised of
individuals who constituted a majority of the Company's Board immediately prior
to the merger, consolidation or purchase of assets, or (b) a change in the
composition of a majority of the members of the Company's Board effected by the
vote of a person who has acquired a number of voting securities of the Company
sufficient to elect a majority of the Board As used in this definition, the term
"person" shall include two or more persons acting as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding or
disposing of the voting securities of the Company.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.4 "Common Stock" - the Company's $0.001 par value Common Stock.
2.5 "Compensation Committee" or "Committee" shall mean the Compensation
Committee of the Board, provided that the Compensation Committee shall at all
times consist of two or more directors of the Company each of whom is not (a)
currently an officer of (or currently employed by) the Company or any parent or
Subsidiary of the Company, (b) receiving compensation, directly or indirectly,
as a consultant advisor or independent contractor (except for an amount which
does not exceed $60,000) or have an interest in a transaction requiring
disclosure under 404(a) of Regulation S-B under the Exchange Act, or (c) engaged
in a business relationship which would require disclosure under Item 404(b) of
Regulation S-B under the Exchange Act.
2.6 "Consultant" shall mean a consultant, independent contractor or other
person or entity who or which has been engaged to provide advisory, professional
or other personal services to the Company or a Subsidiary pursuant to a written
agreement approved by the Board or the Compensation Committee.
2.7 "Date of Grant" shall mean the date on which the Committee grants an Option
or awards Restricted Stock under the Plan.
2.8 "Disability" shall mean the inability, as determined by the Compensation
Committee based on advice of a licensed physician, of a Participant to engage in
any substantial gainful employment by reason of any medically determinable
physical or mental impairment which can reasonably be
<PAGE> 2
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
2.9 "Employee" shall mean an employee of the Company or any Subsidiary.
2.10 "Exchange Act" shall mean the Securities Exchange Act of 1934.
2.11 "Fair Market Value" shall mean the fair market value of a share of Common
Stock, determined as follows: (a) if the Common Stock is traded on a stock
exchange or in the NASDAQ National Market System ("NASDAQ/NMS"), the fair market
value of a share on a particular date shall be the quoted selling price per
share of Common Stock on such exchange or NASDAQ/NMS on that date; (b) if Common
Stock is otherwise traded in the over-the-counter market, the fair market value
of a share of Common Stock on a particular date shall be the mean between the
closing bid and asked quotations per share of the Common Stock on that date; or
(c) if Common Stock is not traded on a stock exchange, NASDAQ/NMS or in the
over-the-counter market or, if traded, there are no transactions on that date,
the fair market value shall be determined in good faith by the Committee by
applying the rules and principles of valuation set forth in Section 20.2031-2 of
the Treasury Regulations (relating to the valuation of stocks and bonds for
purposes of Code Section 2031).
2.12 "Grant Amount" - the number of shares of Restricted Stock granted to a
Participant under the Plan at the time such Restricted Stock is first issued by
the Company.
2.13 "Incentive Stock Option" shall mean an Option which is intended to qualify
as an "incentive stock option" within the meaning of Code Section 422, and any
questions which may arise hereunder regarding such Incentive Stock Options
should be answered consistent with such intention so as to qualify pursuant to
Code Section 422.
2.14 "Nonqualified Stock Option" shall mean an option which is not intended to
qualify as an Incentive Stock Option.
2.15 "Option" shall mean an option to purchase shares of Common Stock granted
under the Plan, which may be either an Incentive Stock Option or a Nonqualified
Option.
2.16 "Option Amount" shall mean the number of shares subject to an Option
granted to an Optionee under the Plan.
2.17 "Option Price" shall mean the purchase price per share of Common Stock as
determined in accordance with the provisions of Section 10 hereof.
2.18 "Participant" shall mean an officer, director, Employee or Consultant of
the Company or a Subsidiary to whom an Option or Restricted Stock is granted
under this Plan.
2.19 "Performance Objectives" shall mean the performance objectives for each
grant of Restricted Stock under the Plan that must be achieved in order for some
or all of such Restricted Stock to become Vested, as determined by the
Compensation Committee at or before the Date of Grant. Such performance
objectives may be expressed in terms of (a) the lapse of time during which a
Participant remains employed by, or in the service of the Company, (b) any
quantifiable, financial, technical, economic or operational performance criteria
for the Company, any Subsidiary or any business unit, division or function
within the Company or any Subsidiary, including, but not limited to, cash flow,
earnings per share, capital formation, expenses, gross or net margin, increase
in stock price, inventory turnover, market share, net income (before or after
taxes), net operating income, personal management objectives, return on assets,
return on equity, return on
-2-
<PAGE> 3
investment return on sales, revenue and total stockholder return, or (c) any
combination of some or all of the foregoing.
2.20 "Reorganization" shall mean a sale or transfer of all or substantially all
the Company's assets, a merger, reorganization, or consolidation of the Company
with another corporation in which the Company is not the surviving corporation,
or liquidation or dissolution of the Company.
2.21 "Restricted Stock" shall mean shares of Common Stock granted through any
Restricted Stock Award under the Plan which remain outstanding and as to which
Restrictions have not expired or otherwise been removed in accordance with the
terms of this Plan.
2.22 "Restricted Stock Award" or "Award" shall mean any grant of Restricted
Stock made to a Participant under the Plan.
2.23 "Restrictions" shall mean the restrictions imposed on the sale, transfer,
assignment or other disposition of Common Stock as set forth in Section 7
hereof.
2.24 "Retirement" shall mean a Participant's voluntary termination of employment
by delivery of formal written notice thereof to the Company at any time after he
or she has reached sixty (60) years of age and shall have accrued fifteen (15)
years of service as an employee of the Company (including its present or former
Subsidiaries).
2.25 "Subsidiary" shall mean any corporation of which not less than fifty-one
percent (51%) of the shares of the voting stock (representing the right, other
than as affected by events of default, to vote for the election of directors or
other managing authority) are now, or hereafter during the term of this Plan,
owned or controlled directly or indirectly by the Company.
2.26 "Termination for Cause" shall mean any involuntary termination of a
Participant's employment by the Company or any Subsidiary if the termination is
a result of or in connection with such Participant's (a) engaging in any
business that is competitive with that of the Company while an Employee, (b)
committing any material act of dishonesty, including but not necessarily limited
to theft or embezzlement of funds or property of the Company, or perpetrating a
fraud on or affecting the Company, (c) engaging in any gross negligence or
willful misconduct with respect to his or her duties and responsibilities as an
Employee or acts in any other way that has a direct, substantial and adverse
effect on the Company's reputation, including but not necessarily limited to
willful or grossly negligent disregard for the Company's obligation to comply
with laws, regulations and the like applicable to the Company, its properties,
assets or business, or (d) conviction of a felony.
2.27 "Vesting" or "Vested" shall mean the removal of Restrictions as to any
Restricted Stock awarded under the Plan.
2.28 "Vesting Date" shall mean the date on which Vesting shall be determined as
set by the Compensation Committee.
3. SHARES SUBJECT TO THE PLAN.
3.1 The shares reserved for issuance as Restricted Stock and as shares which
may be issued pursuant to Options under the Plan shall not exceed 3,000,000
shares of Common Stock, of which no more than 400,000 shares may be for
Incentive Stock Options, subject to adjustment by the Board or as provided in
Section 3.2 hereof.
-3-
<PAGE> 4
3.2 In the event of changes in the outstanding shares of Common Stock by reason
of stock dividends, recapitalization, split-ups, combination, merger (including
reincorporation effected by means of a merger), reclassification, or exchange,
of shares, and the like, appropriate adjustments shall be made by the Board in
the number and kind of Options and Restricted Stock which may be issued,
including adjustments of the limitations set forth in Section 3.1 on the maximum
number of and kind of shares which may be issued as Options or Restricted Stock,
3.3 Any shares of Restricted Stock forfeited to the Company pursuant to the
terms of this Plan may, subsequently, be issued as Restricted Stock hereunder.
4. EFFECTIVE DATE. The Plan has been adopted by the Board as of March 27, 1998
(the "Effective Date"), subject to approval by the affirmative vote, of the
holders of a majority of the outstanding shares of Common Stock present in
person or by proxy at the 1998 Annual General Meeting of the Company's
shareholders to be held in December, 1998.
5. ADMINISTRATION. Grants of Options and Restricted Stock Awards and other
determinations under the Plan shall be made by (a) the Board or (b) the
Compensation Committee. In addition, the Board has authority to perform all
functions of the Committee.
6. ISSUANCE OF RESTRICTED STOCK, DETERMINATION OF PERFORMANCE OBJECTIVES AND
ACHIEVEMENT OF PERFORMANCE OBJECTIVES.
6.1 The Compensation Committee may, from time to time:
A. determine the Participants, if any, to whom Restricted Stock Awards are
to be issued, and the terms and provisions thereof including Vesting;
B. establish the Grant Amount, if any, to be awarded to each such
Participant and determine that the value to the Company of the past services of
such Participant is at least equal to the aggregate par value of the Grant
Amount;
C. establish Performance Objectives; and
D. determine whether and to what extent if any, the Performance Objectives
for any previously awarded Restricted Stock, if any, have been achieved and, on
the basis of such determination, establish the portion, if any, of a Grant
Amount that is to be Vested.
6.2 Performance Objectives may not be changed, altered or adjusted, provided,
however, that the Board may make such charges as it deems appropriate to reflect
the effects on the performance of the Company of an acquisition of a company or
business, the divestiture of a subsidiary or division or other transactions or
events outside the ordinary course of business which for financial reporting
purposes are as determined in accordance with Generally Accepted Accounting
Principles.
6.3 Upon a determination in accordance with Section 6.1 D hereof, that any
Restricted Stock is to be Vested, the removal of such Restrictions shall be
effective with respect to such Grant Amount, or portion thereof, as of the
Vesting Date.
6.4 Participants to whom Restricted Stock Awards are made under the Plan shall
not be required to make any monetary payment to the Company. However, all such
Awards shall be subject to the Restrictions and all certificates representing
Restricted Stock shall be issued with a restrictive legend, stamped, imprinted
or otherwise inscribed thereon, referencing such Restrictions. All share
certificates representing such Restricted Stock shall be registered in the name
of the Participant to whom the Restricted Stock is issued and may in accordance
with
-4-
<PAGE> 5
instructions established by the Committee, be delivered to the Company's
Secretary or such other person as the Company may appoint to retain physical
custody until the Restrictions imposed thereon have expired or shall have been
removed.
6.5 Each Restricted Stock Award issued under the Plan shall be evidenced by a
written agreement in form approved by the Committee, specifying the number of
shares covered by the Award and such other provisions, consistent with the Plan,
as may be deemed appropriate by the Committee, and by the issuance of one or
more stock certificates pursuant to Section 6.4.
7. RESTRICTIONS. No shares issued as Restricted Stock Awards hereunder may be
sold, assigned, transferred, pledged, hypothecated, or encumbered either
voluntarily or involuntarily until the Vesting of the Restricted Stock in
accordance with the terms of the Plan.
8. EXPIRATION AND REMOVAL OF RESTRICTIONS.
8.1 All Restrictions shall expire and terminate at such time and upon such
conditions as determined by the Committee as provided for herein. Any shares for
which the Restrictions have not expired or been removed within ten (10) years
from the date of Grant, shall be subject to call by the Board. In such case at
any time after said ten (10) year period and at which time said shares have not
vested, upon thirty (30) days written notice to the Participant the shares shall
be returned to the Company and the Participant shall have no further rights in
connection therewith.
8.2 If a Participant's employment is terminated voluntarily or involuntarily
(except for death, Disability, Retirement, the events referred to in Sections
8.3 through 8.5 hereof, or in connection with a Reorganization in which the
Participant becomes employed by a successor corporation or business entity) all
Restricted Stock held by him shall immediately and automatically be forfeited to
the Company and Participant shall thereupon have no further right, title or
interest in such Restricted Stock; provided, however, that any Restricted Stock
that has Vested shall not be forfeited.
8.3 If a Participant's employment with the Company is terminated as a result of
death or Disability, all Restricted Stock shall be Vested as of the date of
death or, in the case of Disability, as of the date of the determination of such
Disability by the Board or Committee as the case may be.
8.4 In the case of termination of employment for Retirement a pro rata portion
of the shares of Restricted Stock held by the retiring Participant, less the
number of shares which have previously Vested, will be Vested immediately,
calculated on the basis of a five year vesting schedule beginning on the Date of
Grant and ending on the effective date of such Retirement. For example, if a
Participant retires two years after the Date of Grant, Restricted Stock would
Vest as to forty percent (40%) of the Grant Amount, and all remaining shares of
Restricted Stock held by the Participant would be returned to the Company and
the Participant would have no further rights in connection therewith.
8.5 If within twelve (12) months following a Change in Control there should
occur, without a Participant's consent, a material lessening of his or her
duties and responsibilities as an executive or key management employee of the
Company or a material reduction in his or her base salary from the rate in
effect as of the Date of Grant and, if, within ninety (90) days following such
material lessening of duties or responsibilities or a material reduction in his
or her base salary, the Participant shall, by providing written notice to the
Company, voluntarily terminate, his or her employment relationship with the
Company, all Restricted Stock held by such Participant shall become Vested.
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8.6 In the event of a Reorganization, the Board, in its sole discretion may
Vest all or any part of the issued and outstanding Restricted Stock prior to or
contemporaneously with the effective date of such Reorganization. In the event
of any Reorganization in which holders of Restricted Stock receive securities
(herein "Exchange Securities") of another corporation or business entity in
respect of Restricted Stock held by them, such Exchange Securities shall be
subject to the Restrictions and to removal or expiration thereof in accordance
with the terms of this Plan if the Board, for any reason, elects not to
accelerate the removal of Restrictions prior to or contemporaneously with the
effective date of the Reorganization.
8.7 Upon Vesting of Restricted Stock in accordance with the terms of the Plan,
all Restrictions imposed by Section 7 hereof shall be deemed removed and
terminated with respect to the applicable Restricted Stock grants and the
Company shall issue such instructions to the Transfer Agent or Registrar and
take such other actions as may be appropriate in order to cause the removal,
cancellation or rescission of all legends, stamps or other inscriptions
referencing the restrictions on share certificates representing Restricted Stock
which have Vested.
9. RIGHTS AS STOCKHOLDERS. Upon the issuance of the shares of Restricted Stock
pursuant to Section 6.5, the Participant shall, subject to the Restrictions,
have all the rights of a stockholder with respect to said shares, including the
right to vote the shares and to receive all dividends and other distributions
paid or made with respect to the shares.
10. TERMS AND CONDITIONS OF OPTIONS.
10.1 ELIGIBILITY. Options may be granted to employees, executives, officers,
directors or advisory board members whose performance for or contribution to the
Company is considered by the Committee to have a significant effect on the
success of the Company and to Consultants whose retention by the Company
involves the performance of personal services that as determined by the
Committee, are of significant value or benefit to the Company. The adoption of
this Plan shall not be deemed to give any Employee or other person any right to
be awarded an Option. No Incentive Stock Option shall be granted under the Plan
to a Consultant or anyone other than an employee of the Company or any
Subsidiary.
10.2 OPTION GRANTS. Each Option shall be evidenced by a written agreement (a
"Stock Option Agreement") in a form approved and authorized by the Committee,
which shall be executed by the Company and the Participant receiving the Option.
All Options shall be subject to the following terms and conditions and such
additional terms and conditions, not inconsistent with the Plan, as the
Committee shall deem necessary or appropriate.
A. The Option shall be designated as either an Incentive Stock Option or a
Nonqualified Stock Option. However, notwithstanding such designation, to the
extent that the aggregate Fair Market Value of shares subject to Options
designated as Incentive Stock Options which become exercisable for the first
time by a Grantee during any calendar year (under all plans of the Company or
any Subsidiary) exceeds $100,000, such excess Options, to the extent of the
shares covered thereby in excess of the foregoing limitation, shall be treated
as Nonqualified Stock Options. For this purpose, Incentive Stock Options shall
be taken into account in the order in which they were granted and the Fair
Market Value of the shares shall be determined as of the Date of Grant.
B. The exercise or purchase price, if any, for an Option shall be as
follows:
(i) In the case of an Incentive Stock Option:
a. granted to a Participant who, at the time of the grant of such
Incentive Stock Option, owns directly or indirectly stock representing
more than ten
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percent (10%) of the voting power of all classes of stock of the
Company or any Subsidiary, the per share exercise price shall be not
less than one hundred ten percent (110 %) of the Fair Market Value per
share of Common Stock on the Date of Grant;
b. granted to a Participant other than a Participant described in
the preceding clause, the per share exercise price shall be not less
than one hundred percent (100%) of the Fair Market Value per share of
Common Stock on the Date of Grant.
(ii) In the case of a Nonqualified Stock Option, the per share
exercise price shall be not less than one hundred percent (100%) of the
Fair Market Value per share of Common Stock on the Date of Grant unless
otherwise determined by the Committee.
C. The period during which each Option may be exercised shall be fixed by
the Committee. Unless the Committee shall designate when an Option granted
pursuant to the Plan is exercisable, Options shall be exercisable as follows:
(i) at any time after the first anniversary following the Date of Grant, the
Option shall be exercisable as to 25 percent of the shares covered thereby; (ii)
at any time after the expiration of two years following the Date of Grant the
Option shall be exercisable, cumulatively, as to an additional 25 percent of the
shares covered thereby; (iii) at any time after the expiration of three years
following the Date of Grant, the Option shall be exercisable, cumulatively, as
to an additional 25 percent of the shares covered thereby; and (iv) at any time
after the expiration of four years following the Date of Grant, the Option shall
be exercisable as to all the shares covered thereby which have not theretofore
been exercised pursuant to the provisions of (i) through (iii) above. The
Committee may, after an Option is granted and on such terms and conditions as it
considers appropriate, accelerate the times at which the Option may be
exercised.
D. Unless otherwise determined by the Committee, Options granted pursuant
to the Plan shall expire and cease to be exercisable upon the first to occur of
any one of the following: (i) the expiration of 10 years following the Date of
Grant; (ii) 90 days following the date when a Participant ceases to be an
Employee, except in the case of a Termination for Cause, Retirement, or a
termination by reason of the Participant's death or Disability while an
Employee; (iii) if the Participant dies while an Employee or ceases to be an
Employee by reason of the Participant's Disability while an Employee, one year
following such death or termination of employment, whichever occurs first or
(iv) upon the Participant's Termination for cause. Notwithstanding anything to
the contrary contained herein, in no event may an Option be exercised after the
expiration of 10 Years following the Date of Grant. Further, the term of an
Incentive Stock Option shall be no more than (10) years from the Date of Grant
thereof and, in the case of an Incentive Stock Option granted to a Participant
who, at the time the Option is granted, owns directly or indirectly stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Subsidiary, the term of the Incentive Stock Option
shall be no more than five (5) years from the Date of Grant thereof, or such
shorter term as may be provided in the Stock Option Agreement. All Incentive
Stock Options must be granted within ten (10) years from the earlier of the date
of adoption of the Plan or the date of approval of the Plan by the shareholders.
E. The shares covered by an Option may be purchased and the Option may be
exercised in whole or in part at any time during the period defined in Section
10.2C above and prior to the expiration of such Option. Such exercise shall be
in the manner fixed by the Committee by giving written notice of exercise to the
Company specifying the number of shares to be purchased; provided, however, that
an Option may not be exercised with respect to less than 100 shares subject to
an Option unless there are less than 100 shares remaining subject to the Option.
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<PAGE> 8
F. The notice of exercise of Option, whether the exercise is to be in whole
or in part, shall be accompanied by delivery to the Company of payment for one
hundred percent (100%) of the Option Price for the shares to be purchased, by:
(i) a certified or cashier's check(s); (ii) a check issued by a broker-dealer
that is a member firm of the New York Stock Exchange, Inc.; (iii) at the
discretion of, and upon such terms and conditions as may be established by, the
Committee, delivery of Common Stock already owned by the Participant for at
least six months; or (iv) any combination of the foregoing. In the event that
the Option Price is paid by a check issued by a broker-dealer, an executed copy
of the notice of exercise shall be delivered to the broker-dealer, the notice of
exercise shall instruct the Company to deliver certificates for the shares to be
purchased to the broker-dealer and the Company shall confirm that it will
deliver such certificates to the broker-dealer. No shares shall be issued upon
exercise of any Option until full payment therefor has been made to and received
by the Company.
G. No Option granted under the Plan shall be transferable either
voluntarily or by operation of law except by will or by the laws of descent and
distribution and, during the lifetime of the Participant, such Option shall be
exercisable only by him or her, provided, however, that Options other than
Incentive Stock Options granted hereunder may be transferred on such terms and
conditions, if any, as the Committee may, in its discretion, deem appropriate by
amendment to this Plan. If the Participant dies while an Employee or terminates
his or her Employee status because of a Disability, without having fully
exercised his or her Option, all shares covered by such Participants Option
which were exercisable at the date of his or her death or termination of
Employee status because of a Disability and which becomes exercisable in
accordance with the terms of such Option within 12 months thereafter, shall be
exercisable within such 12 month period when and as such Option becomes
exercisable by such Participant (in the case of Disability) or, in the case of
death, by his or her estate or any other person who acquired the right to
exercise the Option by bequest or inheritance or by reason of death of the
Participant and such estate or other person shall have the right to purchase by
exercise of said Option all or any portion of such shares; provided, however,
that no Option may be exercised at any time after the expiration date thereof.
If the Option is exercised by a person other than the Participant, the Committee
may require, appropriate proof of such other person's right to exercise said
Option.
H. If a Participant ceases to be an Employee for any reason (other than
Termination for Cause, death or Disability while an Employee or Retirement) his
or her Option shall remain exercisable for a period of 90 days thereafter to the
extent and only to the extent such option was exercisable, by its terms, as of
the effective date of his or her cessation of Employee status. Upon Retirement
of a Participant, all shares covered by such Participant's Option shall continue
to be exercisable by such Participant in accordance with the terms of such
Option; provided, however, that if, and to the extent that, an Incentive Stock
Option is exercised more than 90 days after the Retirement date, such Option
will be treated as a Nonqualified Option. No Option may be exercised at any time
after the expiration date thereof.
I. If a Participant ceases to be an Employee and such termination was a
Termination for Cause, all Options shall immediately expire and cease to be
exercisable.
J. No fractional shares will be issued pursuant to the exercise of any
Option nor will any cash payment be made in lieu of fractional shares.
K. In the event that within 12 months following a Change in Control there
should occur, without a Participant's consent a material lessening of his or her
duties and responsibilities as an Employee or a material reduction in his or her
base salary from the rate in effect as of the Date of Grant and if, within
ninety (90) days following such material lessening of duties or responsibilities
or a material reduction in his or her base salary, the Participant shall by
providing written notice to the company, voluntarily terminate his or her
Employee status, unless the Board has, prior to such Change in Control, in its
sole discretion determined that all or a portion of the
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<PAGE> 9
outstanding Options held by such Participant shall become immediately and fully
exercisable upon or immediately following such Change in Control, all shares
covered by such Participant's Options shall become, immediately and fully
exercisable and such Participant shall have the right to purchase, by exercise
of such Option, all or any portion of the shares covered by such Option;
provided, however, that in no event may any Option be exercised after the
expiration date thereof.
L. If (i) within 12 months following a Change in Control, a Participant's
Employee status should be terminated Involuntary by the Company (or any
successor to the Company by reason of such Change in Control) and such
termination is not a Termination for Cause, and (ii) the Board has not prior to
such Change in Control, in its sole discretion, determined that all or a portion
of the outstanding Options held by such Participant shall become immediately and
fully exercisable upon or immediately following such Change in Control, then all
shares covered by such Participant's Options shall become immediately and fully
exercisable and such Participant shall have the right to purchase by exercise of
such Option, all or any portion of the shares covered by such Option; provided,
however, that in no event may an Option be exercised after the expiration date
thereof.
M. In the event of any Reorganization, all rights of the person or persons
entitled to exercise then outstanding Options granted under the Plan and such
Options shall wholly and completely terminate at the time of any such
Reorganization, except to the extent that any agreement or undertaking of any
party to any such Reorganization shall make specific provision with respect to
such Option and the rights of such Participants. Notwithstanding the foregoing,
the Board may determine that each Participant shall have the right immediately
prior to such Reorganization to exercise such Participant's Option with respect
to any or all of the shares remaining subject to such Option, whether or not
such shares are then otherwise purchasable by said Participant. To the extent
that any such exercise relates to shares which are not otherwise purchasable by
the Participant at such time, such exercise shall be contingent upon the
consummation of such Reorganization.
N. The Committee reserves the right and shall determine the expiration,
terms, termination, exercisability and other conditions relating to Options, if
any, granted to Consultants. The shares to be issued under the Options shall be
subject to such restrictions on transferability and other conditions as may be
determined by the Board of Directors at the time of the grant and as may be
imposed by law.
11. ADMINISTRATION AND OPERATION.
11.1 GOVERNMENT REGULATIONS. The Plan and the operation thereof shall be subject
to all applicable federal and state laws, rules and regulations, and to such
approvals by any regulatory or governmental agency as may be required,
including, but not necessarily limited to, the obtaining of necessary permits
and authorizations from applicable state securities commissions and agencies, if
required, and registration of the securities subject to this Plan with the
Securities and Exchange Commission. In addition, the Company may cause an
appropriate legend to be affixed to any stock certificate representing Common
Stock issued under the Plan in accordance with all applicable federal and state
securities laws, rules and regulations. Moreover, the Plan is subject to
amendments by the Board in the event necessary to register the shares to be
issued hereunder with the SEC on a Form S-8 registration statement or any other
form chosen by the Company.
11.2 WITHHOLDING. Whenever, under the Code and applicable regulations, the
issuance of shares of Common Stock upon the exercise of Options or the Vesting
of Restricted Stock will result in any requirement that the Participant pay or
otherwise satisfy any United States or Canada, whichever is applicable, federal,
state or local payroll withholding amounts, including taxes, FICA and the like,
it shall be a condition to the issuance (or Vesting) of such Common Stock that
the Participants shall have made arrangements satisfactory to the Company, as
determined in
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accordance with rules established by the Committee, with respect to the payment
or satisfaction of such withholding amounts. In lieu of paying in cash
additional sums which may be required to satisfy such withholding amounts, if
any, the Committee may permit Participants to elect to deliver to the Company
shares of Common Stock held by such Participant or a portion of the shares of
Common Stock subject to the Option then being exercised by such Participant (or
to be Vested in the case of Restricted Stock) as payment or in partial payment
of the withholding amount requirement subject, however, to such rules as may be
adopted by the Committee.
11.3 AMENDMENTS. The Board may at any time and from time to time modify, amend,
suspend or discontinue the Plan in any respect, except that without stockholder
approval, the Board may not increase the, number of shares reserved under the
Plan (other than increases due to changes in capitalization), permit the
issuance of Common Stock upon exercise of an Option before payment therefor in
full, make any change in the eligibility requirements hereunder, or extend the
period within which Incentive Stock Options may be granted. Approval by the
stockholders means approval by the holders of the requisite number of shares of
Common Stock either (a) at a meeting at which shareholders are present or
represented by proxy; and (b) by written consent of shareholders, in each case,
in accordance with the applicable laws of the State of Nevada. The modification
or amendment of the Plan shall not without the consent of a Participant,
adversely affect his or her rights under Options or Restricted Stock previously
issued to him or her.
11.4 EMPLOYMENT RELATIONSHIP. Neither the Plan nor any Option or restricted
Stock granted hereunder shall confer upon any Participant any right to continued
employment by the Company or any Subsidiary, or shall interfere in any way with
the right of the Company or any Subsidiary to terminate his or her employment at
any time with or without notice or cause.
11.5 LISTING ON EXCHANGE. The Company shall not be required to issue or deliver
any certificates for shares of Common Stock under the Plan prior to: (a) the
listing of such shares on any stock exchange on which the Common Stock may then
be listed; and (b) the completion of any registration or qualification of such
shares under any United States or Canada, whichever is applicable, federal or
state securities laws, or any rulings or regulation of any governmental body,
which the Committee shall in its sole discretion, determine to be necessary or
advisable.
12. GENERAL PROVISIONS.
12.1 No Participant and no beneficiary or other person claiming under or through
such Participant shall have any rights as a stockholder of the Company with
respect to any shares of Common Stock allocated or reserved under the Plan and
subject to any Option or Restricted Stock Award except as to such Shares of
Common Stock, if any, that have been issued or transferred to such Participant
free of any Restrictions.
12.2 The Plan and all determinations made and actions taken pursuant thereto
shall be governed by the laws of the State of Nevada and construed in accordance
therewith.
12.3 Continuance of the Plan with respect to the grant of Incentive Stock
Options and grants to Employees shall be subject to approval by the stockholders
of the Company within twelve (12) months before or after the date the Plan is
adopted, and such stockholder approval shall be a condition to the right of a
Covered Employee to receive Performance-Based Compensation hereunder. Such
stockholder approval shall be obtained in the degree and manner required under
applicable laws.
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This Panther Resources, Ltd. 1998 Stock Incentive Plan was adopted by the
Board on March 27, 1998.
PANTHER RESOURCES, LTD.
By: /s/ Penny Perfect By: /s/ Katharine Johnston
----------------------------- ---------------------------
Name: Penny Perfect Name: Katharine Johnston
Title: President Title: Secretary
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EXHIBIT 23.2
May 12, 1998
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use of
our audit report dated April 9, 1997 (and to all references to our Firm)
included in or made a part of the Form S-8 registration statement of Panther
Resources, Ltd.
/s/ Jones, Jensen & Company
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Jones, Jensen & Company
